September 24, 2018

Pennsylvania court opens door to claims of trespass by fracking

TRENDS

(by Steven B. Silverman)

In the first decision of its kind, Pennsylvania’s intermediate appellate court has rejected the rule of capture in favor of recognizing trespass claims where hydraulic fracturing (fracking) extends to adjoining unleased lands. If the court’s decision stands, it could pave the way for a wave of trespass claims based on fracking, as well as changes to fracking operations themselves.

The dispute

In Briggs v. Southwestern Energy Production Co., 2018 Pa. Super. 79 (2018), the Briggs family owned an unleased, 11-acre parcel in Susquehanna County, in Pennsylvania’s far northeast corner. The parcel was adjacent to a parcel on which Southwestern Energy Production Company was undertaking fracking operations. The family claimed that Southwestern trespassed on their land through its fracking operations, resulting in the conversion of Briggs’ natural gas.

Southwestern countered that, as a matter of law, it could not be liable for trespass or conversion under the well settled rule of capture, which insulates operators who capture hydrocarbons draining from adjacent lands, even when those lands are not leased.

The trial court agreed with Southwestern, and the family appealed.

Rejecting the rule of capture

In rejecting Southwestern’s defense and overturning the trial court, the Superior Court of Pennsylvania held that the rule of capture did not apply to fracking of unconventional wells. The court opined that the rule was the product of geological practicality because, with historical conventional drilling, a pool of gas or oil will naturally flow to adjacent land. In contrast, with unconventional wells and shale gas, it is necessary for fracking to first reach the shale to release its hydrocarbons. Thus, the court held that the extension of that fracking to release the gas from the Briggs’s shale could be deemed a trespass. …

September 18, 2018

Fourth Circuit Rules that Coal Ash Ponds and Landfill are not “Point Sources” under the Clean Water Act

Environmental Alert

(by Lisa M. Bruderly and Gary E. Steinbauer)

Another three-judge panel of federal appellate judges has ruled on whether a National Pollutant Discharge Elimination System (NPDES) permit is required for pollutants in groundwater seepage that ultimately reach a water of the United States. Unlike the two other federal appellate court decisions issued earlier this year, this time the federal appellate court held that the Clean Water Act (CWA) did not regulate such discharges, finding that there was no “point source.”

On September 12, 2018, the U.S. Court of Appeals for the Fourth Circuit issued its decision in Sierra Club v. Virginia Electric Power Co. (VEPCO), holding that diffuse underground seepage from coal ash settling ponds and a landfill located at a closed coal-fired power plant are not regulated under the CWA. The VEPCO matter is one of several citizen suits filed by environmental groups across the country asserting novel theories of liability under the CWA. The Fourth Circuit in VEPCO was the first appellate court to address these theories with respect to coal ash ponds and landfills. The VEPCO decision is available at http://www.ca4.uscourts.gov/opinions/171895.P.pdf.

Factual and Legal Background

VEPCO involved inactive settling ponds and a landfill that were used to treat and store coal ash generated by an adjacent coal-fired power plant in Chesapeake, Virginia. VEPCO operated the settling ponds under a state-issued NPDES permit and the landfill under a state-issued Resource Conservation and Recovery Act (RCRA) permit. In 2002, groundwater samples collected from a series of monitoring wells installed pursuant to the RCRA permit showed elevated levels of arsenic in the groundwater and VEPCO implemented corrective action under a state-approved plan. …

September 18, 2018

Keith J. Coyle: Oppose the ban on pipeline construction A moratorium on pipeline construction will make Pennsylvania less safe

Pittsburgh Post-Gazette 

(by Keith J. Coyle)

A pipeline incident that occurred in Beaver County earlier this week is bringing increased attention to the issue of pipeline safety.  Many residents are concerned about the pipelines that pass by their homes, schools, and places of business.  Some are even going a step further and calling for a statewide moratorium on all pipeline construction.

I’ve spent the past decade working on pipeline safety issues as an attorney-advisor for the Pipeline and Hazardous Materials Safety Administration (PHMSA), a member of Governor Wolf’s Pipeline Infrastructure Task Force, and an attorney in private practice.

I understand the anxiety that people feel after a pipeline incident.  They want to know that their families are safe, and that the folks in charge are doing what is necessary to protect public safety.

Every incident serves as a reminder of the additional work that needs to be done to make pipelines safer.  But that does not mean that we should ignore the important role that pipelines play in improving our lives or disregard the efforts that are being made to build upon the industry’s strong safety record.

Pipelines are a critical part of the nation’s energy infrastructure. There are more than 2.7 million miles of pipelines in the United States, and Pennsylvania is home to approximately 91,000 miles of pipelines, according to the latest PHMSA data.

These lines carry the energy products that heat our homes, run power plants, provide fuel for transportation, and deliver the feedstock that is used to make countless consumer goods.

Pipelines are the safest and most reliable means of transporting energy products. The Frasier Institute, a Canadian-based research organization, found in a recent study that pipelines are 4.5 times safer than other comparable modes of energy transportation. …

September 18, 2018

Commonwealth Court invalidates portions of Chapter 78a regulations as unlawful

The PIOGA Press

(by Jean M. Mosites)

On August 23, the Commonwealth Court issued a unanimous opinion in The Marcellus Shale Coalition v. Department of Environ mental Protection and Environmental Quality Board, 573 M.D. 2016 invalidating portions of the new prepermit process created in 25 Pa. Code §§ 78a.1 and 78a.15(f) and (g), pertaining to new “public resources.” The Marcellus Shale Coalition (MSC) challenged the provisions as unlawful and unreasonable, seeking declaratory and injunctive relief.

There is no statutory right to judicial review of new regulations in Pennsylvania. Such challenges must proceed in the form of a declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-bycase basis. The latter course can be duplicative, lengthy and costly, offering only piecemeal relief. MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of the Environmental Quality Board’s authority, regulations with high cost and little discernible benefit.

Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g) and the related definitions contained in Section 78a.[1] of the Chapter 78a regulations. The provisions created a new pre-permitting process for well permit applicants, requiring new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012.

Following MSC’s Petition for Review, the Commonwealth Court preliminarily enjoined application of portions of the regulations on November 8, 2016.1 MSC filed an application for partial summary relief on Count I on August 31, 2017. Pending review of that application, the Pennsylvania Supreme Court affirmed the grant of preliminary injunctive relief as to Count I on June 1, 2018. …

August 31, 2018

Federal Court Enjoins West Virginia County from Using Zoning Laws to Interfere with Construction of Compressor Station

Energy Alert

(by Timothy M. Miller and Christopher B. (Kip) Power)

On August 29, 2018, the United States District Court for the Southern District of West Virginia issued a Memorandum Opinion and Order granting Mountain Valley Pipeline (MVP) summary judgment and permanently enjoining the County Commission of Fayette County, West Virginia, from using a zoning ordinance to bar construction of the Stallworth Compressor Station (CSS).  The CSS is a vital part of the 303.5-mile long, 42-inch diameter, MVP pipeline project stretching from Wetzel County, West Virginia, to Pittsylvania County, Virginia.  See Mountain Valley Pipeline v. Matthew D. Wender, et al., Case No. 2:17-cv-04377, Mem. Op. and Order (S.D. W. Va. August 29, 2018).

The CSS is being constructed on property owned by MVP in an area that is currently zoned Rural-Residential under the County’s Unified Development Code.  MVP sought approval for the limited re-zoning of the area to Heavy-Industrial, while also seeking a FERC certificate of authority for construction of the station.  FERC ultimately granted the certificate of authority during the re-zoning application process, but the County Commission nevertheless denied the re-zoning request.  Violations of the zoning ordinance exposed MVP to potential civil and criminal penalties.

The FERC approval process, as noted by the District Court, requires an applicant to make a bona fide attempt to comply with state and local authorities, but this “rule of reason” is secondary to FERC’s authority under the Natural Gas Act to preempt state and local authority over jurisdictional facilities authorized by FERC.

The Court dismissed the various theories relied upon by the County Commission and held  the zoning ordinance was unenforceable due to field and conflict preemption pursuant to the Supremacy Clause of the United States Constitution.  …

August 30, 2018

Under Secretary of Transportation for Policy Derek Kan joins Congressman Keith Rothfus to Meet with Local Transportation and Infrastructure Industry Professionals and Leaders

Babst Calland Facilitates Discussion Regarding Autonomous Vehicles Technology

On Friday, August 31st, The Department of Transportation’s Under Secretary of Transportation for Policy, Derek Kan, joins Congressman Keith Rothfus (PA-12) in Western Pennsylvania to discuss projects of regional importance, as well as emerging autonomous vehicle technology, with local leaders and professionals in the transportation and infrastructure sectors.

Justine Kasznica of Babst Calland’s Mobility, Transport and Safety practice will facilitate the roundtable discussion related to autonomous vehicles and drones among leading manufacturers, technology companies, and universities.

August 29, 2018

Pennsylvania Commonwealth Court Invalidates Portions of Chapter 78a Regulations as Unlawful

Environmental Alert

(by Jean M. Mosites and Kevin J. Garber)

On August 23, 2018, the Commonwealth Court issued a unanimous opinion invalidating components of the new pre-permit process created in 25 Pa. Code
§§ 78a.1 and 78a.15(f), and (g), pertaining to new “public resources.”  The Marcellus Shale Coalition (MSC) challenged the provisions as unlawful and unreasonable, seeking declaratory and injunctive relief.  The Marcellus Shale Coalition v. Department of Environmental Protection and Environmental Quality Board, 573 M.D. 2016.

There is no statutory right to judicial review of new regulations in Pennsylvania.  Such challenges must proceed in the form of declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-by-case basis.  The latter course is duplicative, lengthy and costly, offering only piecemeal relief.  MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of EQB’s authority, regulations with high cost and little discernible benefit.

Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g), and the related definitions contained in Section 78a.1 of the Chapter 78a regulations.  The provisions created a new pre-permitting process for well permit applicants, providing new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012.

Following a hearing for temporary injunctive relief, the Commonwealth Court preliminarily enjoined application of portions of the regulations on November 8, 2016.  MSC filed an application for partial summary relief on Count I on August 31, 2017.   Pending review of that application, the Pennsylvania Supreme Court affirmed the grant of preliminary injunction relief as to Count I on June 1, 2018. …

August 27, 2018

As Big Law Steps on Their Turf, Midsized Firms Bet on Niche Practices

The Legal Intelligencer 

(by Lizzy McLellan)

As more large firms restructure into multidisciplinary industry-focused groups, the niche practices emerging resemble some of the services midsize firms have been offering for years, or sometimes decades.

With increasing competition in the legal industry, and Big Law more often competing for the middle-market work midsize firms were built on, midsize firm leaders have been bullish about maintaining and expanding their specialized practices.

Babst, Calland, Clements and Zomnir, based in Pittsburgh, was built on a niche focus in environmental law from the start, and has expanded on that over the years, managing shareholder Donald Bluedorn said.

“Our philosophy is to pick specific areas and put together teams with as much sophistication as anyone in the country,” Bluedorn said, then deliver those services “at a lower price point.”

Since, the firm has added other niche practices that grow naturally from its environmental roots. ”We don’t just look for bolt-on practices,” Bluedorn said.

So when the Marcellus Shale play created business opportunities in Pennsylvania, the firm seized on the opportunity to grow an energy practice, which would co-mingle well with environmental law. And when it saw a chance to get involved with pipeline safety, it built on an already established regulatory practice in Washington, D.C., as well as the energy and environmental practices.

“We like to see multiple touchpoints with these areas we have,” Bluedorn said. “We really try to do a very conscious, well-thought-out approach.”

Most recently, the firm has built on that regulatory practice again, bringing together a mobility, transport and safety group to handle matters in the emerging area of unmanned aircraft, driverless cars and space technology. Timothy Goodman, a former U.S. …

August 24, 2018

Raise It or Waive It: Standing Can Play a Critical Role in Zoning Hearings

The Legal Intelligencer

(by Krista-Ann M. Staley and Amie L. Courtney)

While the setting may be significantly less formal—think a public works garage or community center gymnasium rather than a marble-columned historic landmark—standing requirements apply in the context of a zoning hearing as they do in a more formal courtroom setting. Therefore, whether representing a party seeking a zoning approval, a zoning hearing board or governing body considering a zoning application, or an objector, it is important to understand how to navigate the issue of standing during the initial proceeding.

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state’s zoning enabling legislation, clearly provides a “landowner” with standing to file a zoning application or pursue a zoning appeal. The statute broadly defines “landowner” as including the owner of the subject property, the holder of an option to purchase the property, an authorized lessee, or “other person having a proprietary interest in land”. However, Pennsylvania law does not provide a bright-line standard to determine whether a party has standing to object in a zoning proceeding. This is an important determination because a party with standing to object may cross-examine an applicant’s witnesses and present its own witnesses and evidence. A party with standing may also appeal the final determination. As a result, participation by an objector can significantly impact the path and outcome of a zoning case.

Pennsylvania case law provides a general framework to determine whether an objector has procedural and substantive standing, both of which are required to obtain “party” status in a zoning hearing. To have substantive standing, an objector must be “aggrieved” by having a direct interest in the subject of the proceeding that would be adversely affected by the action. …

August 24, 2018

Federal Court Partially Vacates U.S. EPA’s 2015 Coal Combustion Residuals Rule

Environmental Alert

(by Donald C. Bluedorn II and Gary E. Steinbauer)

On August 21, 2018, the D.C. Circuit Court of Appeals issued its Opinion in Utility Solid Waste Activities Group, et al. v. EPA , addressing the consolidated petitions challenging the United States Environmental Protection Agency’s (EPA) Coal Combustion Residuals (CCR) Rule. The Court largely upheld the challenges raised by environmental groups and denied the challenges raised by industry groups. A copy of the Opinion is available at https://www.cadc.uscourts.gov/internet/opinions. nsf/0/5A6D02C8038BA2CA852582F0004E0D37/$file/15-1219-1746578.pdf.

After years of studying CCR and public pressure stemming from catastrophic failures like the 2008 incident at the Tennessee Valley Authority’s Kingston, Tennessee facility, EPA promulgated the CCR Rule in 2015. For the first time since the federal Resource Conservation and Recovery Act was enacted in 1976, the Rule established minimum national “Subtitle D” criteria for existing and new CCR landfills and surface impoundments operated by electric utilities and independent power plants.

Not surprisingly, the Rule was challenged shortly after it was promulgated by a group of environmental organizations, known collectively as the “Environmental Petitioners,” and several groups of industry groups, known collectively as the “Industry Petitioners.” On June 14, 2016, the Court granted EPA’s motion to remand certain portions of the CCR Rule. Shortly before the Court held oral argument in November 2017, EPA filed a motion seeking voluntary remand on specific provisions of the CCR Rule that remained at issue in the litigation. More than three years after the Rule was challenged, the Court issued a lengthy 72-page opinion largely upholding the challenges of the Environmental Petitioners and denying the challenges of the Industry Petitioners.

Here is a quick summary of the key points from the Court’s Opinion:

  1. The Court granted EPA’s motion for a voluntary remand on three parts of the Rule:
  • The definition of “Coal Residuals Piles” as discussed in 40 C.F.R.

    • …

August 20, 2018

Obama-Era WOTUS Rule Back In Effect, What Happens Now?

Environmental Alert
(by Lisa M. Bruderly, Janet L. McQuaid, Gary E. Steinbauer)
Late last week, a South Carolina district court reinstated the Obama administration’s 2015 Clean Water Rule (referring to it as “the 2015 WOTUS rule”) in 26 states, including Pennsylvania, Ohio, New York, Maryland, New Jersey and the New England states.  The decision overturns a move by the Trump administration earlier this year to delay the applicability date of the 2015 WOTUS rule until early 2020 and brings the Rule’s definition of “waters of the United States” (WOTUS) into effect in these states, at least for the time being.  Unless the South Carolina decision is overturned or invalidated, the reinstatement of the 2015 definition of WOTUS could have significant Clean Water Act (CWA) permitting, compliance and enforcement implications for regulated entities in these 26 states, given that the 2015 definition of WOTUS is widely regarded by industry as unreasonably expanding the types of waterbodies under U.S. EPA and U. S Army Corps of Engineers’ jurisdiction.
Background Regarding the Clean Water Rule
Shortly after the August 28, 2015 effective date of the 2015 WOTUS rule, the Rule was challenged in federal courts, including the Sixth Circuit. While the Sixth Circuit preliminarily enjoined the Rule in October 2015 (See Ohio v. United States Army Corps of Eng’rs, 803 F.3d 804 (Oct. 9, 2015)), on January 22, 2018, the Supreme Court invalidated the Sixth Circuit’s preliminary injunction, holding that the district courts, rather than the courts of appeal, had original jurisdiction over the appeals (S.Ct. 16-299). Nat’l Ass’n of Mfrs. v. DOD, 138 S. Ct. 617 (2018).
In anticipation of the Sixth Circuit vacating its preliminary injunction (and the 2015 WOTUS rule coming into effect in all but then 13 states), on January 31, 2018, EPA and the Corps finalized a rule setting an applicability date for the 2015 WOTUS rule of February 6, 2020.  …

August 16, 2018

Is Your Employee Handbook Up to Date? Compare It With This Checklist

The Legal Intelligencer

(by Brian D. Lipkin)

When you are preparing or revising an employee handbook, this checklist may be helpful.

Acknowledgment

  • Do employees sign a signature page, confirming they received the handbook?
  • On the signature page, do employees agree to follow the policies in the handbook?
  • Does the signature page state that this handbook replaces any previous versions?
  • On the signature page, do employees agree that they will be “at-will” employees?
  • Do employees agree that the employer may change its policies in the future?

Wage and Hour Issues

  • Does the employer confirm that it will pay employees for all hours worked?
  • Before employees work overtime, are they required to obtain a supervisor’s approval?
  • During unpaid breaks, are employees completely relieved of all duties? (For example, while a receptionist takes an unpaid lunch break, this person shouldn’t be required to greet visitors or answer phone calls.)
  • Are employees paid when they attend a business meeting during lunch?
  • Are employees paid for attending in-service trainings?
  • Are employees paid while they take short breaks?

Paid Time Off

  • Has the employer considered combining vacation time, sick time, and personal time into one “bucket” of paid time off?
  • Does the paid time off policy line up with the employer’s business objectives? (For example, does it provide incentives for employees to use paid time off during seasons when business is slower?)
  • Does the handbook say what will happen to paid time off when employment ends? (In Pennsylvania, employers are not required to pay terminated employees for the value of their paid time off.

    • …

August 16, 2018

Pittsburgh’s Babst Calland Bulks Up Emerging Tech Practices

The Legal Intelligencer

(by Lizzy McLellan)

With its latest lateral hires, Pittsburgh-based Babst, Calland, Clements and Zomnir is doubling down on emerging technologies, including driverless vehicle technology.

The firm this week hired shareholder Justine Kasznica in its mobility, transport and safety group, as well as its corporate and commercial group. Also joining are intellectual property shareholder Carl Ronald and associate Michael Fink, also in the corporate and commercial group.

Kasznica’s practice is focused on unmanned aircraft, driverless cars and space companies. She and Ronald are both joining from Baer Crossey McDemus, a business and technology law boutique with offices in Philadelphia and Pittsburgh. Fink was an associate at Buchanan Ingersoll & Rooney.

The additions come a month after Babst Calland added William Godfrey, who was a senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration.

“When I was approached by a recruiter who talked about Babst Calland, I had known of them as an oil and gas, environmental firm,” Kasznica said. But she quickly learned that the firm was also investing in its technology-related practices. A major selling point, she said, was that Babst Calland last year had hired Timothy Goodman, a former U.S. Department of Transportation lawyer, in Washington, D.C. He now leads the firm’s mobility, transport and safety group.

“In working with frontier technology, you’re essentially required to try to understand and work alongside policy and regulations that are either nascent, nonexistent or present but need to be adapted,” Kasznica said. “The channel to Washington, D.C., and the fact that Babst Calland has strategically built and focused on building that office … is absolutely critical and critical for the companies that will be working with us.”

Kasznica grew up interested in model aircraft and aviation, she said, then began to learn more about robotics during law school, through a friend of hers at Carnegie Mellon University. …

August 15, 2018

Five Babst Calland Attorneys Named as 2019 Best Lawyers® "Lawyers of the Year" and 33 Selected for inclusion in The Best Lawyers in America© by BL Rankings

Babst Calland is pleased to announce that five lawyers were selected as 2019 Best Lawyers “Lawyer of the Year” in the Pittsburgh, Pa. and Charleston, W. Va. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2019 Best Lawyers “Lawyer of the Year” by BL Rankings include:

Kevin J. Garber, Natural Resources Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Kevin Garber was also listed in the 2019 Edition of The Best Lawyers in America in Environmental Law, Energy Law, Water Law, and Litigation – Environmental.

Joseph K. Reinhart, Environmental Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Joseph K. Reinhart was also listed in the 2019 Edition of The Best Lawyers in America in Natural Resources Law, Energy Law, and Litigation – Environmental.

Mark D. Shepard, Litigation – Environmental “Lawyer of the Year”  in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Mark D. Shepard was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation and Bet-the-Company Litigation.

Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W.Va. – In addition to the “Lawyer of the Year” award, Timothy Miller was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation, Bet-the-Company Litigation, Oil and Gas Law, and Litigation – Environmental. …

August 10, 2018

Complexities in determining title to oil and gas under Pennsylvania roadways

The PIOGA Press

(by Adam Speer)

The increased exploration of oil and gas throughout the Common wealth of Pennsylvania in recent years has highlighted the importance of determining the ownership of oil and gas underlying public roads and highways. More than 120,000 linear miles of state and local roadways traverse the Commonwealth. Public roadways―which include local roads, streets, alleys, expressways, interstates and turnpikes―may be created by conveyance, condemnation, dedication or prescription.

To determine proper ownership of the oil and gas under a roadway, a full title search of surrounding tracts must be completed. The time and method by which the roadway was created often influence the ownership of the oil and gas. This article, though not exhaustive, discusses the primary methods that roads may be created in Pennsylvania and provides a framework for determining oil and gas ownership under a public road.

Centerline presumption

Under Pennsylvania law, there is a general presumption that a conveyance of land bounded by a public roadway carries with it the fee to the center of the road as part and parcel of the grant, unless the road is owned in fee by the Commonwealth or municipality or an interest in the roadway has been expressly reserved. Where the side or edge of a street or highway is called for as a boundary in a deed, the grantee takes title in fee to the center line of such roadway. The grantee acquires a fee interest in the land to the centerline of the roadway, subject to the public’s right of passage and any reservations, and the grantor divests himself of his interest in the same. If a public roadway easement is later vacated, the property reverts “automatically and simultaneously” to abutting landowners. …

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